MS attorney lays siege to Fisher

A long, boring session looked like investment for an appeal

Michael Lacovara's excruciatingly boring cross-examination of Fisher must have had as its primary purpose to blunt Judge Jackson's recollection of Fisher's direct testimony. Lacovara's wins occurred with his frequent planting of landmines to catch Fisher, who performed appallingly on the witness stand. He resorted to "I don't remember" (TM B Gates) more than 50 times, and used an array of similar statements many more times than that. Even this wouldn't have been so bad had Fisher been able to find the answers to questions quickly from the five ring binders he brought to court, but he couldn't. The ultimate problem was that he really did not understand the technology, and often hazarded a silly guess, or went along with what Lacovara suggested. There were many questions about the Adknowledge data samples, and it soon became clear that Fisher had little first-hand experience of the data, and that assistants had done much of the work. Fisher's written testimony drew attention to some deficiencies in the data sets, but Lacovara tried to find more. Either Microsoft did not like the findings from the data (which is unlikely because they were little discussed), or the questioning was part of Microsoft's attempt to discredit Fisher and provide plenty of material, so Microsoft can claim in the higher courts that Fisher was incompetent in some of the areas in which he responded to questions. There was no real point to many of Lacovara's questions, other than to provide a base for discrediting Fisher. Lacovara established that Fisher had done no academic work on Java or streaming media, which was hardly surprising since Fisher does not represent himself as a computer scientist. Most of the cross-examination wasn’t on Fisher's area of expertise, and included OLE and OpenDoc which have no discernible relationship to the subject of Fisher's testimony. Nor was it relevant or useful to quiz Fisher on earlier evidence. Turning to Fisher's record as an expert witness in earlier cases, Lacovara found that in Kodak versus Polaroid, Fisher's testimony had been criticised as "unreliable and contained assumptions, biases and errors". Fisher said he thought the court had been misled by an "intellectually quite dishonest witness". During the second day of Fisher's cross-examination he was subjected to a viva [Oxbridge stuff that Graham knows about ‘cos he’s a toff – Ed] on the subject of computing, and of course performed poorly: he couldn't name any of the companies supporting NCs. However, Fisher did opine "I do not" in response to a question about the AOL-Netscape merger: "Do you think that transaction affects the likelihood that Microsoft will gain monopoly power in what you call the market for web browsers". Later in the morning, Judge Jackson produced his own Court Exhibit 1, an item from the Washington Post. Again it was confusing as to what Fisher intended by his reply to the court's question: The Court: The thrust of the article is that there is no intention on the part of the AOL/Netscape/Sun consortium to compete with Microsoft. When asked whether or not he was going to compete, Mr Case is quoted as saying, "of course not." Quote, "we have no flight of fancy that we can dent in any way, shape or form what is a monopoly in the operating system business." And the question I have of you, assuming these quotations are accurate, is this, to use Mr Lacovara's phraseology, consistent with your understanding of what the impact of this consortium is likely to be insofar as developing viable competition for what is alleged to be a Microsoft monopoly.” Fisher: It certainly is. Lacovara: Can I direct your attention to the paragraph that begins with "the simple rationale for the Netscape acquisition". And I will read it into the record. It says, "the simple rationale for the Netscape acquisition," says Case, "is that it will help AOL dominate two of its key businesses, providing a 'portal' or gateway to the Internet; and helping business learn to use the Internet for electronic commerce." Is that consistent with your opinion as to the likely effects of the transaction? Fisher: I have no reason to believe that that isn't so -- that that is what they want to do, yes. . . . Lacovara: Okay. And do you see a couple of paragraphs earlier where there is a discussion of alternative operating systems? Do you see a paragraph that begins with "Case dismisses the idea that AOL can develop alternative operating systems?" Do you see that? Fisher: I do. Lacovara: Now, I didn't ask you whether you were of the opinion that AOL would become an operating system vendor, did I? Fisher: I don't think so. Lacovara: Okay. Now, do you see the next sentence where it says, "That idea is ballyhooed by Sun CEO, Scott McNealy, and other computer analysts, who envision a post-PC world where Microsoft's PC-based monopoly will crumble of its own weight?" Do you see that? Fisher: I do. Lacovara: Are you familiar that that is a concept that has been ballyhooed by Sun and by other people -- excuse me -- by other analysts in this industry? Fisher: I don't know about the other analysts. Sun has, for a long time, been the principal proponent of Java as a way to unlock the world, in effect, and it would be quite surprising if they didn't still believe that that was going to happen or might happen. Fisher offered opinions that WordPerfect had been developed by Novell, and that "Apple abandoned QuickTime for Windows". It was particularly damning when Fisher admitted to including a remark about wrapping an API as a Java API in his report. Lacovara asked him the meaning of this, which Fisher fumbled, and then asked him what efforts he had made "to make sure you understood what this really meant". Fisher's reply was: "Oh, I didn't think it mattered." Many press reports had been stating that AOL had around 15 million subscribers, but Fisher thought it was "on the order of 10 million". When Fisher was deposed, he was asked "Do you know what a Java Virtual Machine is?" He replied: "an application written in Java that will run – that means it will run typically independent of the operating system". During cross-examination he admitted that this was wrong. He was then asked if Java was the first language to make cross-platform application development possible. Although Fisher had a brave stab at answering and mentioned emulators on IBM/360, he really should not have tried to answer computer science questions. Perhaps his having used Visual Basic made him think he was a programmer. The judge became increasingly impatient that Lacovara did not give Fisher time to look up the answers to questions that required numeric data. He also said that it was no test of a witness' credibility simply to put him through a memory test here, and that although Lacovara was entitled to test the basis of Fisher's opinion, it was not a fair test of testimony if he couldn't remember some data. Lacovara introduced an extract from the deposition of Jim Clarke of Netscape in which he said that Gates had told him, before the first beta of Navigator and probably in September or October 1994, that he was going to give away the browser in the operating system. Gates wanted to use Netscape's browser, but as usual the sticking point was the terms: Gates wanted to pay a flat fee whereas Netscape wanted a per-copy royalty. The negotiations collapsed. Bored court reporters leapt at some small and insignificant incidents. Lacovara asked Fisher about the amount of work he had done on the case by the time he took the stand. The judge asked Lacovara if he would like to withdraw the question, to which he replied: "I don't mean to get the witness agitated, your honour. If he feels he wants to do it now, it's perfectly fine with me. The court: Ask him to do so. Fisher: Mr Lacovara, if I appear agitated to you, I apologise. Emphatic, I would have said. A few minutes later there was another small incident Fisher: [Name not recorded properly] says that they want to colour the world the colour of goose shit. If Microsoft forced upon the world one browser, that would make it really simple. That's not what competition is about. That's not what helping consumers is about. Giving choice is what competition is about. Lacovara: Now, you do seem agitated, sir. Fisher: I am agitated. I feel strongly on this point. Lacovara: If I represented to you, sir, that more than half of all people who buy personal computers today have a choice of browsers, would you agree? Would anything you looked at support that statement? Fisher: I do not agree that they have a real choice of browsers. Microsoft has influenced the choice so that they end up in one place. And we're going to live in a Microsoft world, and it may be a nice world, but it's not a competitive world, and it's not a world that's ultimately consumer-driven. Lacovara: Okay. Do you need a break or can we continue? Fisher: Hey, my blood pressure doesn't rise during these. A third minor incident brightened the late morning: Lacovara: Can you tell me what Microsoft did to try to disable Netscape? You said Microsoft - Fisher: No. No. No. No. No. I am just dumfounded at the that ameliorates this confusion problem that you just question [sic]. Not because I can't answer it. Lacovara: What did Microsoft study and try to implement to try to disable Netscape? [sic] Fisher: Microsoft studied Netscape's business model and studied its source of revenue. Microsoft priced its browser for free and bundled its browser and put a lot of effort into – put a lot of effort into promoting, bribing and forcing people to take its browser. A good deal of that appears to me and appears, I think, from Microsoft documents, to have been directed at thwarting the threat that Netscape represented to the operating system monopoly. Lacovara continued to trawl through some of the more sensitive testimony in the hope of tempting Fisher to a silly response to a question, but there were no further disasters. David Boies started his redirect examination, which he estimated would continue for a further two hours or so on Monday. It is also expected that Microsoft will introduce a Motion to have the court cleared so that what Microsoft regards as confidential OEM data may be discussed. Some ten news organisations will attempt to intervene to stop the secrecy, but it is unlikely that they will succeed. ® Complete Register trial coverage